This case arises from injuries Plaintiff Cherie Ferrell sustained on November 15, 2020 when she fell into a City of Atlanta water utility meter box. Ferrell alleged that the improperly secured water meter lid and the lack of “warning of the uneven pavement elevation change” caused her injuries.
On the morning of November 15, 2020, Ferrell went to 957 Ashby Grove, Atlanta, GA 30318 (property) to meet her son, Joshua Ferrell. It is undisputed that Cherie Ferrell and Joshua Ferrell owned the property at the time she fell.
Ferrell visited the property approximately five times prior to November 15, 2020 and more than five times after November 15, 2020. She had not observed a water meter at the property prior to her fall.
Several months before the incident, Joshua noticed a crack in the sidewalk near the water meter, but he did not contact the City regarding the sidewalk. Both Joshua Ferrell and Christopher Shiver noticed that the water meter was located below the sidewalk’s elevation. It is undisputed that the water meter box and the sidewalk are located within the City of Atlanta and the water meter was a part of the system of waterworks owned by the City of Atlanta.
Ferrell filed suit against the City asserting claims sounding in negligence.
Ferrell identified Christopher Shiver, P.E. as her expert engineer to opine on the condition of the water meter box, the water meter lid, and the sidewalk damage and elevation change. The City challenged Shiver’s testimony as unreliable and not based upon scientific theories, techniques, or principles.
Mechanical Engineering Expert Witness
Christopher Barrow Shiver performs engineering evaluations of equipment and systems involved in failures, accidents, fires/explosions and other abnormal incidents for claims and risk professionals, attorneys and products manufacturers and designers.
He has a degree in mechanical engineering from the Georgia Institute of Technology.
Discussion by the Court
Shiver’s Opinions are Sufficiently Reliable
The City argueds Shiver’s opinions are unreliable because they are based on inaccurate temporal information — the date of the incident and when City workers accessed the water meter box and lid — and inaccurate topographical information of the residential neighborhood.
The Court held that Shiver’s opinions based on when the City accessed the water meter box in relation to November 15, 2020 are not wholly speculative: regardless of when Joshua Ferrell contacted the City, at no time did the City repair the sidewalk or water meter prior to Shiver’s February 22, 2021 inspection.
Shiver testified he “did a study of that [incident] area photographically, took measurements, you know, made observations, made notes.” He conducted his inspection on February 22, 2021 which included “visual observations, and [he] took a number of measurements, which [he] noted and are also documented in some of [his] photographs.”
Shiver’s Opinions are based on Inaccurate Timing and Incomplete Knowledge
The City is also critical that Shiver’s opinions are the result of applying legal principles such as the 1997 Georgia Accessibility Code and Federal 2010 ADA Standards for Accessible Design to a property’s neighborhood which was allegedly built in the early to mid-1900s. While the City argues that the codes and standards Shiver relied upon applies to construction or renovations after July 1997 and March 2012 and not a neighborhood build nearly a century prior, the Site Work Plan was developed and permitted in 2019. Shiver admitted he did not “have a full training in everything pertaining to the law, no, but [he does] in the specific areas that [he] practice[s] in and how to interpret those codes, standards, regulations, and ordinances with regards to how features are to be constructed, designed, and maintained.”
Even if Shiver’s opinions are based on inaccurate timing and incomplete knowledge of the neighborhood, the Court held that this does not mandate the exclusion of the opinion, but rather, presents a jury question as to the weight which should be assigned the opinion.
Shiver did not do any Reliable Testing during his February 22, 2021 Inspection
When Shiver went to the property he took photographs, measurements, and made observations. He used tape measurers, rulers, a pocket rod, and angular measurement instruments to measure slopes. He even took photographs of the water meter box. Shiver reviewed “City of Atlanta documentation regarding service activities to the water utility equipment at the subject address from 2008 through 2020.” Shiver spoke with Joshua Ferrell about the site conditions over time.
Ultimately, Shiver evaluated “the results of those measurements with regard to the standard of care and the actual written standards and codes that applied to this type of situation.” He detailed several deficiencies which he opined “could be expected to contribute to a pedestrian trip and/or loss of balance fall occurrence. On this basis, it is probably that deficient paved and unpaved walkway and city utility hardware conditions contributed to the fall incident reported for Cherie Ferrell.”
The Court concluded that Shiver’s measurements, observations, and testimony that he inspected the site and water meter lid were not mere guesses or wholly speculative. Thus, the Court held that the weight to be given to Shiver’s opinions “is a matter to be addressed by the trier of fact.”
Shiver’s testimony may be helpful to the jury
Lastly, the City argued that Shiver’s testimony should be excluded because it is not scientific, specialized, or technical and does not assist the trier of fact.
However, the Court found that Shiver’s testimony fits the pertinent causation inquiry and should be properly considered by the jury.
Held
The Court denied the Defendant’s Daubert motion to exclude the testimony of Christopher Shiver.
Key Takeaway:
Even if Shiver’s opinions are based on inaccurate timing and incomplete knowledge of the neighborhood, the Court held that this does not mandate the exclusion of the opinion. Moreover, Shiver’s measurements, observations, and testimony that he inspected the site and water meter lid were not wholly speculative. When Shiver went to the property he took photographs, measurements, and made observations. He used tape measurers, rulers, a pocket rod, and angular measurement instruments to measure slopes. He even took photographs of the water meter box.
Case Details:
| Case Caption: | Ferrell V. City of Atlanta |
| Docket Number: | 22EV002099 |
| Court: | State Court of Georgia, Fulton County |
| Order Date: | December 5, 2024 |
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